The mistake in the date of the summons was a defect in the form of the process necessary to bring the defendant before the court; and upon a motion to dismiss for that cause, the decision of the judge presiding in the Superior Court is final. Gen. Sts. c. 115, § 7.

The evidence excluded was immaterial. The trial on the indictment was res inter alios, to which the plaintiff was not a party. And the issue of larceny on that trial was different from the issue of conversion in this action; the one involved a question of intent; the other might be under a claim of right.

Exceptions overruled.